1491.007 |
1491 |
Assize, Exchequer Chamber, Common Pleas |
Assize |
Assise
Pleint
Bailif
Garnish
Receit
Curia
Baily
Misnomer
Ancien demesne
Opinio
Quaere
Conusance
Opinio Justices
Abatement de brief
Opinio
Challenge
Judicium
Damages
Diversite |
all the Justices
the Serjeants
Kebell, Thomas Sjt Keble Kebille (mentioned)
Jay, Richard Sjt Iaye
Rede, Robert Sjt
the Justices
Wode, Thomas Sjt Wood
some Justices ascun
the Justices
Wilks, Prothonotary Wilks prenotary Wilkes prignatorie
all the Justices Omnium Justiciis
Bryan, Thomas CJCP Brian
all the Justices
Bryan, Thomas CJCP Brian
Bryan, Thomas CJCP Brian
one of his companions (Justices of CP)
all (the Justices)
Bryan, Thomas CJCP Brian |
Marland |
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others |
S. or Smythe, J., bailiff of a defendant |
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Brooke Discontinuance de proces 34, Charter de pardon 67, Exposition 42, Prerogatife 62 (not 64), Releases 44 (not 24) |
later proceeding 1495.112 = Mich. 11 Hen. 7, pl. 34, fol. 10b-11b
8 Edw. 4, fol. 28, 29 (previous plea?)
11 Hen. 7, fol. 10, 11 (previous plea?)
16 Hen. 6, fol. 39 (previous plea?)
12 Edw. 3, Lib. Ass. pl. 34
8 Hen. 7, fol. 11
5 Edw. 4, Long Quinto fol. 114 (twice)
9 Hen. 7, fol. 24 (twice)
7 Hen. 6, fol. 11
9 Hen. 6, fol. 40 (twice)
9 Edw. 3, Lib. Ass. pl. 4
8 Hen. 6, fol. 9
22 Hen. 6, fol. 49
20 Edw. 3, Lib. Ass. pl. 10 (twice)
21 Hen. 6, fol. 64, 65
9 Edw. 3, fol. 453
21 Edw. 3, fol. 25, 26
50 Edw. 3, fol. 20 accord
46 Edw. 3, fol. 18
5 Hen. 7, fol. 3 (twice)
2 Ric. 3, fol. 9
11 Hen. 7, fol. 10
Littleton, Tenures fol. 119 |
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Un brief d' Assise fuir arreign in Middlesex per Marland & auters envers Newdigate & auters. Et le plaint fuit d' 3 |
34 |
Plaintiffs arraigned a writ of Assize against defendants
Plaintiffs' plaint was for three houses and certain land.
Tenants (defendants) defaulted.
One appeared as tenant's (defendant's) bailiff and pleaded 'no wrong, no disseisin'.
The jurors were chosen and tried.
Day was given by the assent of the parties until a certain day.
The sheriff was commanded that he have the bodies of the jurors (habeat corporum Juratorum).
Inasmuch as (defendants') bailiff did not have day by express words, nor did the jurors, it was argued in Exchequer Chamber before all the Justices of England and the Serjeants, Sjt Kebell being absent.
Sjt Jay said that there was a discontinuance, because (defendants') bailiff ought to have had day as well as tenant (defendants) when the bailiff pleaded.
(Discussion of what pleas a bailiff could make for defendants.)
The Justices did not want to make more arguments, but demanded precedents.
A Prothonotary, who made the entry, showed to the Court many and various precedents in the aforesaid form, and also various precedents where a tenant (defendant) appeared by bailiff, and (where) cognisance was demanded and allowed, and day fixed in advance (prefixe) 'for the aforesaid parties' and no mention of the bailiffs.
The Prothonotary showed a precedent where there was (an entry) in such a case (giving day to) 'all the aforesaid parties'.
It was held clearly that 'aforesaid parties' and 'all parties' were the same, and no distinction.
On the other hand (side), the Prothonotary showed a precedent in which day was given 'as well to the parties as to the bailiff'.
By the assent of all the Justices except Bryan CJCP, it was adjudged that the continuance was good without any doubt and that the words were suitable enough to give (defendants') bailiff day.
This was the opinion of all the Justices except Bryan CJCP.
It was said that this matter moved him (Bryan CJCP), because the (defendants') bailiff at the next day would have his challenges and his pleas.
It was answered that another bailiff could appear (for defendants) at this day.
Afterwards in Common Pleas judgment was given for plaintiff.
Bryan CJCP said that he did not want to give judgment, but if one of his companions would give (judgment), Bryan CJCP would agree, inasmuch as all were against Bryan CJCP himself.
On the same day, judgment was given in Common Pleas with the damages of 14 pounds.
In the Exchequer Chamber it was touched (upon) that notwithstanding that the jurors did not have day by express words, this was immaterial (ne fuit material), inasmuch as 'there was a precept to the sheriff, that he have the bodies of the jurors', so this was a good conntinuance to the urors.
All (the Justices) agreed to this, and Bryan CJCP also. |
mixed terminology of plaintiff and tenant
Et les Justices ne voulent dire plusors arguments, eins demandent presidents
Wilks prenotary, que fist l' entre, &c. monstra al' Court divers, & moults presidents in le forme avandit: & auxi divers presidents ou un tenant apparust per baily, & conusance fuit demande & allowe, & jour prefixe 'Partibus praedicte', & nul mencion de les bailies; Et monstra un president, ou fuit in tiel cas 'omnibus Partibus praedicte' &c.; Et tenu clerement, que 'Partibus praedicte' & 'omnibus Partibus' fuit tout un, & nul diversite; Et de l' autre part fuit monstre un president, ou jour fuit done 'tam Partibus quam Ballivis'
Et 'ex assensu Omnium Justic-', praeter Bryan CJCP fuit adjuge, que le continuance fuit bien sans ascun doubt
Et issint fuit l' Opinion de Touts les Justices praeter Bryan CJCP
Et il (Bryan CJCP?) dit que cest matter move luy, car le bailif al' prochein hour aura ses challenges & ses ples, & donq il covient aver jour enant que il poit aver eux ples, &c.
Et fuit responde, que novel bailif poit apperer a cest jour
Et apres in Comon Banc Jugement fuit done pur le plaintiff
Bryan CJCP dit, que il ne voule doner Jugement, &c. mes si un de ses Compagnons voule doner, il voule agreer, entant que chescun est incontre luy mesme
Et mesme le jour Jugement fuit done in l' Comon Banc ove les damages de 14 li. |
Sjt Jay: it seems that there is a discontinuance, because the bailiff ought to have a day as well as the tenant (defendants), when he (bailiff) pleaded, and the bailiff is one who has to meddle (mesler, Hemmant trans. 'is concerned'), and will have various pleas, etc. and so he (bailiff) ought to have day
Sjt Rede (to the contrary): he (bailiff) can be understood within the words 'of the parties' (de Partibus), when he pleaded, and when the garnishee appears, and pleds with the plaintiff in an action of Detinue, the entry will make him a party (serra 'Partibus'), because he (garnishee) is a party, and so the tenant (defendant) by the receipt (as intervenor or by interpleader), etc.
and it was touched (upon) by the Justices that the (defendants') bailiff will have every plea that goes to the assize and no others, (so) he will plead (dira) that the tenants (defendants) were in another vill, or he (will) plead misnomer of the plaintiff, etc.
Sjt Wode said that he (defendants' bailiff) will plead (dira) that the tenements were Ancient demesne, etc.
which was denied by some Justices
and he (Sjt Wode?) said yes (ouy) (defendants' bailiff would have such a plea), etc.
Reporter (R.): query if this (plea of Ancient demesne) will be tried by the Assize (jury)
and the Justices did not want to make more arguments, but demanded precedents
all the Justices except Bryan CJCP: the continuance was good (bien) without any doubt; and for this cause, because notwithstanding the bailiff's appearance yet the tenant (defendants) can come at the next day, and will be received well enough; and the tenant's (defendant's) death abates the writ, and so the continuance (was) given to the tenant (defendnants) well enough, but if a continuance had not given this to the tenant (defendant), this would have been a discontinuance, and on the other hand (part), if the bailiff needs to have day by words, those words are suitable enough, because when he appears and pleads, he is a party, etc.
and so was the opinion of all the Justices except Bryan CJCP
and he (Bryan CJCP) said that this matter moved him, because the bailiff at the next day will have his challenges and his pleas, and so he ought to have day inasmuch as he can have those pleas, etc.
and it was answered that a new bailiff could appear at this day
and aftewards in Common Pleas judgment was given for the plaintiff
Bryan CJCP said that he did not want to give judgment, etc. but if one of his companions (fellow Justices of CP) wanted to give (judgment), he (Bryan CJCP) would agree, inasmuch as each is against him (Bryan CJCP) himself (majority rule tendency, but still a matter of consent?)
and the same day judgment was given in Common Pleas with the damages of 14 pounds
and in the Exchequer Chamber it was touched (upon) that notwithstanding that the jurors will not have day by express words, this is immaterial (ne fuit material), inasmuch as 'there was a precept to the sheriff, that he have the bodies of the jurors', etc. this was a good conntinuance to them (jurors)
and all agreed to this, and Bryan CJCP also
note judgment
and it was touched (upon) that if the king pardons 'all demands', yet some inheritances will not be included as to him (the king), and yet in the case of rent, right of entry, and everything that is implied if it be in a common person will be ended (determine), but otherwise in the king's case
later proceeding enrolled at CP 40/913, m. 412 (Trin. 5 Hen. 7) assize for land at Harefield, Middx; verdict for plfs on Weds, feast of St. Edw Conf (I thank Prof. Sir John Baker for record information) |
BL MS Hargrave 105 |
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1491.007 = Hil. 6 Hen. 7, pl. 6, fol. 14b-15b |
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M. Hemmant, ed. Select Cases in the Exchequer Chamber, 64 SS 156-158 (1945) (case 45) (Marland and Others v. Newdegate and Others) |
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0 |
Morland |
Haryngton
Neudygate |
2009-05-21 |
Arraignment
Plaint
House
Certainty
Default
Appearance
Bailiff
As Bailiff
Pleading
Wrong (tort)
No Wrong
Nul Tort
No Wrong No Disseisin
Nul Tort Nul Disseisin
Juror
Choice (esleus)
Trial
Day
Giving Day
Assent
Party
Ex Assensu Partium Partibus
Sheriff
Body
Have The Body
Jurors' Bodies
Habeat Corpora Juratorum
Habeas Corpora
Inasmuch As
Expression
Word
Express Word
By Express Words
Argument
Serjeant
Absence
Discontinuance
Meddling (mesler)
Plea
Contrary
Within The Words
De Partibus
Garnishee
Action
Detinue
Action Of Detinue
Entry
Receipt
By The Receipt
Touch
Going To The Assize
Vill
Misnomer
Tenements
Ancient Demesne
Denial
Reporter (R.)
Query
Trial By Assize
Assize Jury
Demand
Precedent
Prothonotary
Showing
Many (moults)
Form
Appearance By Bailiff
Cognisance
Demand
Allowance
Prefixing
Fixing In Advance (prefixe)
Mention
Showing Precedent
Case
Omnibus Partibus
Clarity
Clear Holding
Holding
Distinction (diversite)
Part
Good Continuance
Doubt
Without Doubt
Cause
Notwithstanding
Next Day
Sufficiency (assez)
Good Receipt
Well Enough
Giving Continuance
Need (besongne)
By Words
Suitability (convenient)
Suitable Enough
Opinion
Matter
Motion
Challenge
Inamsuch As
Answer
New Bailiff
Giving Judgment
Companion
Fellow Justice
Agreement
Damages
Immaterial
Materiality
Precept
Command
Note
Pardon
All Demands
Inheritance
Inclusion
Including
Rent
Case Of Rent
Right
Right Of Entry
Implying
Implication
Person
Common Person
End (determine)
Termination
Otherwise
King
King's Case |
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